Court-Side Seats? The Communications Decency Act and the Potential Threat to Stubhub and Peer-to-Peer Marketplaces

Abstract

In 1996, Congress passed Section 230 of the Communications Decency Act, which provides broad immunity to websites from vicarious liability for the content produced by its users. Despite this broad immunity, a website, will be liable for its user’s content when it is deemed to be an “information content provider” itself. Most courts have followed the test established by the United States Court of Appeals for the Ninth Circuit, in 2008, Fair Housing Council of San Fernando Valley v. Roommates.com, LLC, that a website is an information content provider and thus loses immunity when it “materially contributes to the alleged unlawfulness” of the content. This Note is about the ambiguity left by this “material contribution” test and how it leads to diverging opinions as to StubHub’s immunity from unlawful acts by its users. This Note attempts to solve this ambiguity by offering a new test in line with Congress’ intent to provide broad immunity under Section 230 of the Communications Decency Act.